On Application for Rehearing.
In the petition for rehearing the defendant claims that the agreement in evidence between the parties, but which was not mentioned ⅛ the opinion, operated as a waiver of the infringement alleged in the *571bill. This claim is untenable. The correspondence printed in the record regarding another infringing radiator and the failure of the defendant to make good its offer to disclose to complainant its “radiator taken from stock,” would seem to indicate that estoppel was not an important element of defense.
It. is also claimed that the court erred in its definition of the word “corrugation.” Upon again consulting the dictionaries and the Encyclopedia Americanna, vol. 5, it is ascertained that by the term “corrugated iron” is implied “a sheet of iron formed with parallel ridges and furrows so that the cross-section is a continuous waved line.” The corrugated strips of the patent in suit correspond precisely to this definition, but as hereinbefore shown the defendant’s strips do not, they being corrugated transversely from the edges toward the middle zone, the zone being puckered or flattened down. By this arrangement the summits of the strips contact at the edges and to the puckered portion, the tubes or pipes passing through the regular corrugations which gives firmness to the structure. It is quite probable that the radiating surface is somewhat reduced in defendant’s strips, yet the evidence shows that by puckering the middle zone the metallic mass is apportioned in such a way as to impart a sufficient surface for the desired radiation and conductive capacity. That the middle portion of the strips gives the defendant a somewhat less radiating surface is immaterial in view of the fact that such construction attains the substantial function of the Uong patent in suit and operates in substantially the same way. In this aspect of the case 1 am disinclined to narrow the claims to their literal phrasing of “corrugations extending transversely from edge to edge.” But defendant contends that such claims were limited in the Patent Office. On referring to the file wrapper it appears that the patents cited by the Commissioner of Patents to limit the claims do not show corrugated strips or plates from edge to edge which contact with the summits of adjacent strips and the amendments required were not on that ground- — that is, no amendment was required as condition to the allowance of the claims which limited the particular extent of the corrugations — and therefore I do not think that the claims in suit should be limited to the precise form of strip and thus defeat the essence of the Long invention. Reece Button-Hole Ma. Co. v. Globe Button-Hole Ma. Co., 61 Fed. 967, 10 C. C. A. 194; Seiler v. Fuller & Johnson Mfg. Co., 121 Fed. 85, 57 C. C. A. 339.
The application for rehearing is denied.